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2014 DIGILAW 469 (ORI)

Mihir Kumar Das v. State of Orissa

2014-08-06

D.DASH

body2014
JUDGMENT D. DASH, J. 1. The appellant (since dead) being aggrieved by the judgment of conviction and order of sentence passed by the learned Special Judge-cum-Sessions Judge, Khurda at Bhubaneswar had preferred this appeal challenging his conviction for offence under Section 20(b)(i) of NDPS Act and sentence of rigorous imprisonment for a period of two years as well as fine of Rs. 500/- with default stipulation to undergo rigorous imprisonment for three months. During pendency of this appeal, the appellant having died, his son Nirlop Dash is perusing the same having been granted with due leave in that regard. 2. Prosecution case is that on 31.8.1991 around 3.45 P.M. the Inspector-in-charge of Chandrasekharpur Police Station, Bhubaneswar got a telephonic message from one Ashok Choudhury, the then Inspector-in-charge of Capital police station, Bhubaneswar that he has detected a person who stated before him to have procured ganja from the appellant residing in Qr. No. 25 of Press Colony, Chandrasekharpur, Bhubaneswar and that the appellant was in possession of ganja in his quarter. Having entered this information in the station diary book of the police station, information was immediately passed on to the Zonal DSP to arrive at Chandrasekharpur Police Station while further informing the Superintendent of Police, Khurda in writing. The DSP then arrived when the IIC, Chandrasekharpur Police Station informed him all about the information received by him. Thereafter, DSP being accompanied by IIC, Chandrasekharpur Police Station as well as other police personnel and two independent witnesses namely, Janakar Sahoo and Subash Chandra Ray went to the press colony. The raiding party members arrived in front of the said quarter at about 4.30 P.M. They went near the entrance door of the quarter in occupation of the appellant when the appellant came out of his quarter. So, the DSP in presence of witnesses conveyed him the information received regarding the illegal possession of the contraband ganja by him in the said quarter. He also expressed his intention to search the said house. Next he told the informant to opt as to if he wanted the search to be conducted in presence of Magistrate and Gazetted Officer and the appellant then opted for the search by the IIC in presence of others. Accordingly, the house was searched. He also expressed his intention to search the said house. Next he told the informant to opt as to if he wanted the search to be conducted in presence of Magistrate and Gazetted Officer and the appellant then opted for the search by the IIC in presence of others. Accordingly, the house was searched. On search, a polythene bag containing contraband ganja and one green coloured containing cash, two weighing balances, weight, one small iron khanati and photo identity card of the appellant were recovered from his bedroom, near the place where the idols and portraits of the deities were kept for worship. The content of the bag i.e. ganja being weighed came to containing 250 grams. Two parts of sample search weighing 25 grams were drawn and kept in two separate packets and sealed. The residue ganja of 200 grams were kept in polythene bag and sealed. Necessary seizures lists showing the seizure of the articles were prepared there. The sample being sent to the SFSL for examination, the report came in the affirmative that those were nothing but ganja. Hence the trial. 3. The appellant pleaded his innocence by further stating that he had been falsely implicated in this case. Prosecution in the case has examined six witnesses. The senior most officer of the raiding party i.e. DSP has been examined as P.W.1 and the independent witness who had gone with them is P.W.2, Sub-Inspectors or Police as the members of the raiding party have been examined as P.W.3 and 5 respectively. P.W.4 is the Manager of the Government Press. The IIC of Chandrasekharpur Police Station has appeared in the witness box at last as P.W.6. From the side of the defence all together three witnesses have been examined. The Assistant Manager of the Press has been cited as witness D.W.1, D.W.2 is the witness who had gone in the raiding party as independent witness but has not been examined by the prosecution. Son of the appellant has also appeared in the witness box as D.W.3. 4. The Assistant Manager of the Press has been cited as witness D.W.1, D.W.2 is the witness who had gone in the raiding party as independent witness but has not been examined by the prosecution. Son of the appellant has also appeared in the witness box as D.W.3. 4. The trial Court recording the evidence in order to answer as to whether the appellant was in illegal possession of 250 grams of ganja said to have been seized on 31.10.1991 from the quarter in his occupation situated at Press Colony, Chandrasekharpur, Bhubaneswar has gone to analyze and evaluate the evidence on record and finally has answered the above point in favour of the prosecution holding that the prosecution has well proved it's case against the appellant for having been in illegal possession of 250 grams of ganja in the quarter allotted to him by the Government situated at the Press Colony, Chandrasekharpur, Bhubaneswar. Thus, the appellant has been convicted for above offence and sentenced as stated above, the defensibility of which are called in question in this appeal. 5. Learned counsel for the legal representatives of the deceased appellant prosecuting this appeal submits that the evidence on record is insufficient to record a finding of possession of said 250 grams of ganja to be there with the appellant at the relevant time. Placing the deposition of each of the witnesses from the side of the prosecution, he submits that even if for a moment it is accepted that 250 grams of ganja being kept in polythene packet was seized from the quarter and that the quarter was in occupation of the appellant, the knowledge about its keeping cannot be attributed to the appellant in the facts and circumstances of this case. He further submits that the nexus between the bag said to have been containing 250 grams of ganja with the appellant has not at all been established. According to him, even if for a moment the seizure of contraband ganja of 250 grams is accepted, then also the same cannot be said to have been seized from the exclusive and conscious possession of the appellant. It is the next contention that there is no clear, cogent and acceptable evidence to the effect of compliance of provisions of Section 42(1) and Section 42(2) of the NDPS Act, which are the mandatory legal requirements. It is the next contention that there is no clear, cogent and acceptable evidence to the effect of compliance of provisions of Section 42(1) and Section 42(2) of the NDPS Act, which are the mandatory legal requirements. He further submits that the prosecution has also been able to establish the safe custody either of the sample packets or the bag containing residue ganja. To sum up his contention is that the answers given on the point formulated by the trial Court are not correct. Therefore, said finding is attacked as indefensible and as such unsustainable. So, he urges that the judgment of conviction and order of sentence are vulnerable and need be set aside in this appeal. 6. Learned counsel for the State on the contrary refutes his submission of the adversary counsel as above. It is his contention that the answer given by the trial Court to the point formulated is based on just and proper appreciation of evidence on record and there having been due evaluation of the same, the trial Court has arrived at the correct finding. He further submits that the quarter was admittedly allotted to the appellant and the seizure was made in presence of the appellant and others when he has raised no objection at all. It is his further contention that the seizure of the contraband ganja having been duly proved from the said quarter allotted to and in occupation of the appellant at the relevant time, his knowledge gets well attributed and therefore it has been rightly held to have been seized from his possession. In view of above, he submits that the appeal sans of merit. 7. Before taking up for consideration of the contention with regard to the exclusive possession, and have critical look at the evidence. It is pertinent to state that here in the case the quantity of ganja said to have been seized is only 250 grams. The recovery is said to have been made from a place where photographs of deities and idols were there and puja was being performed in a room, which is said to be the bedroom. It is to be further kept in mind that the room is a part of that quarter, which was allotted to the appellant for his stay with his family. 8. It is to be further kept in mind that the room is a part of that quarter, which was allotted to the appellant for his stay with his family. 8. P.W.1 being the Deputy Superintendent of Police is said to have accompanied with other police personnel to the spot. It is his evidence that on arrival they knocked at the door of the house as it was by then closed and the appellant came out and on being told, he accepted the proposal for the purpose of the search of the house. He further states that in the puja room of that house one jari packet was recovered which was found to contain ganja of 250 grams besides cash and other things. P.W.2 has stated to have gone with the police personnel to the place. He further states that in the room deities were kept on a self and from that self one polythene packet was found which was later on discovered to be having ganja. It is the evidence of P.W.3, the S.I. of Police that from the bedroom the recovery was made from a place where the photographs of the deities and idols were their for puja. Evidence of P.W.5 is to the effect that on entering bed-cum-puja room, one white polythene packet was found to be there on the floor against the wall on which the photographs of the deities were hung. Thus, the evidence of this witness completely differs from others as above stated. P.W.6 is the star witness of the prosecution, who is none other the I.O. He has deposed that upon search of that bed-cum-puja room the polythene packet was recovered. On a bare reading of the evidence of these witnesses, there appears inconsistency as regards the particular place of the bedroom where from the seizure was made. In such state of affair, the question arises as to whether for seizure of such quantity of 250 grams of ganja, the allotted of the quarter whom we can say for the time being to be the principal occupant how far would be responsible or liable and whether his knowledge with regard to such keeping of article in that particular place can be ipso facto attributed. If the answer comes in the affirmative then it is to be seen whether prosecution evidence is there to find out that the keeping of Ganja in that place being within his knowledge if can be held that it was in his exclusive and conscious possession. The prosecution as it appears from the very beginning has been projecting the case that at the relevant time of search, recovery and seizure, none other than appellant was there in the house. But that is found to be unacceptable. P.W.6 during cross-examination has gone to say that both the sons of the appellant were occasionally staying in the quarter when his wife was a permanent occupant. Even at the time of seizure presence of the son was there as it reveals from the arrest and which contains his signature. The defence has also examined witnesses on this score. D.W.2 is a witness who admittedly as per the case of the prosecution had gone to the said quarter with the others at the relevant time. His clear and categorical evidence is that the appellant was staying with his two sons and wife in the house and they were all present then. The evidence of this defence witness being considered together with the evidence of others as stated above, leads to a conclusion that at the relevant time the appellant was residing there with his wife and two sons at least one of whom can be said to be adult who being examined as a defence witness has stated his age to be 24 years when the assessment of the Court has also been such. Thus, in my considered view, even accepting for a moment that there was recovery of polythene packet containing 250 grams of ganja from that bedroom and from near the place where puja was being done, the knowledge about keeping of the same cannot be attributed to the appellant in the absence of any evidence with regard to his conduct at the relevant time at the sight of the police personnel prior to that or at that time or even thereafter. Therefore, the said packet containing ganja cannot be to have been recovered from the exclusive and conscious possession of the appellant. Next comes for consideration the submission with regard to the sealing and safe custody of the sample packets. Therefore, the said packet containing ganja cannot be to have been recovered from the exclusive and conscious possession of the appellant. Next comes for consideration the submission with regard to the sealing and safe custody of the sample packets. It is seen that evidence has been let in by the prosecution as regards drawal of samples in two parts at the spot and sealing of the same using the brass seal of P.W.6 who is said to have given the same in zima of P.W.2. The purpose of sealing using a particular seal is to prove that the very sample collected was put to test and to verify it, the specimen impression of the seal is separately placed on seizure list and zimanama for due comparison. However, here it appears that the zimanama, Ext.2 neither does contain the specimen impression of the said brass seal nor in the seizure list it has been placed. In the instant case, it is of great significance, in view of the fact that the seizure is not of that huge quantity of ganja that possibility of planting can be totally overruled. So, this defect cannot be lightly brushed aside in the facts and circumstances of the case. Therefore, there was no materials before the Magistrate to make a comparison as to whether the seal used for sealing the sample packet at the spot was that seal which he found on the sample packet. The order sheet dated 3.1.1998 is silent on that score. Such state of affair makes it unsafe to conclude that the sample packets were those, which were packed at the spot upon collection of those from out of the contents of the said bag and were placed for test. 9. With regard to the safe keeping of the residue ganja, no document has also been proved in this case during trial. At the cost of the repetition, it may be stated here that the case is based upon alleged seizure of only 250 grams and therefore, such safeguards are necessarily required to be proved to fasten the criminal liability upon the person facing the trial. Let us now go to the submission of non-compliance of mandatory provisions of Section 42(1) and 42(2) of the Act. Let us now go to the submission of non-compliance of mandatory provisions of Section 42(1) and 42(2) of the Act. Although it is stated by P.W.6 that he had made a station diary entry bearing No. 810 in the station diary book of the Police Station, the same has not seen the light of the day being proved. When he has further stated to have sent said information to the Superintendent of Police, Khurda in writing, most importantly at a belated stage on recall, a carbon copy of a letter purported to have been so sent has been proved and marked as Ext.14. This cannot be said to be serving the very purpose. The letter has not been seized from the office of the Superintendent of Police nor any dak book to show dispatch or receipt at the receiving office have been proved. Therefore, as it appears there has been total non-compliance of mandatory provision of law and though said compliance has been attempted to be proved, that has further created suspicion when it is seen that Ext.14 does not contain even the letter number. So, for non-compliance of the aforesaid provision of law the trial stands vitiated. 10. For the foregoing discussions and reasons, the impugned judgment for conviction and the surviving part of the order of sentence of fine are found to be vulnerable. In the result, the conviction of the appellant (since dead) for offence under Section 20(b)(i) of the NDPS Act and also the order of sentence as it presently survives are hereby set aside. 11. Accordingly, the appeal stands allowed. Appeal allowed.